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[2025] NSWCA 184
procedural. Order 2 made on 30 July 2025 was set aside and replaced with an order that Mr Bolton pay Keybridge’s appeal costs incurred on or before 17 July 2025 on the ordinary basis, and costs from 18 July...
The Court of Appeal decided that Keybridge's four-day offer was reasonable in the unusually fast-moving appeal. Keybridge had given up a real costs claim in exchange for dismissal of the appeal without an inter partes costs order. Because the offer was not accepted, the Court applied UCPR r 42.15A: Mr Bolton had to pay ordinary costs up to the offer date and indemnity costs from the next day. He had filed no material opposing that order.
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2,202 words · generated 06/10/2026
This judgment concerns costs after an expedited appeal, not the merits of the underlying appeal. The Court of Appeal, constituted by Bell CJ, Payne JA and Stern JA, dealt with Keybridge Capital Limited's request for a special costs order following the appeal judgment in Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 3) [2025] NSWCA 168. The present decision was delivered on 12 August 2025.
2 cited instruments linked from this judgment.
Mr Bolton joined the appeal as second appellant on 9 July 2025. Yowie Group Limited had commenced the proceedings, but after Mr Bolton's joinder Yowie played no active part in them ([5]). On 16 July, Mr Bolton's then solicitors served an amended notice of appeal and written submissions ([6]).
The next morning, Keybridge sent a letter offering to resolve the appeal. Its proposed terms were dismissal of the proceedings and no order as to costs between Mr Bolton and Keybridge ([7]). The offer expressly invoked UCPR r 20.26 and said it was open for written acceptance until 10.00 am on 21 July. The appeal hearing was listed for 24 July. Keybridge also said it would rely on the offer in support of an indemnity-costs application if the offer was not accepted and Keybridge obtained an outcome no less favourable.
The letter explained why Keybridge regarded the appeal grounds as weak, relying in part on Leeming JA's earlier assessment in Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142. It also said Keybridge had already incurred costs responding to directions hearings and preparing for the appeal, and would forego recovery of those costs under the offer ([7]). The Court later treated that waiver, together with the waiver of costs that would accrue while the offer remained open, as a substantive concession amounting to a compromise ([14]).
No response to the offer was received ([8]). The Court heard the appeal on 24 July and delivered its principal judgment on 30 July ([11]). During the costs process, Mr Bolton filed no submissions or evidence opposing Keybridge's application. Keybridge then consented to determination on the papers ([3]-[4]).
The Court set aside order 2 made on 30 July and replaced it with an order requiring Mr Bolton to pay Keybridge's appeal costs on the ordinary basis for costs incurred on or before 17 July, and on an indemnity basis from 18 July ([18]).
The Court addressed two linked questions: whether the offer was a valid compromise with a reasonable acceptance period, and whether its non-acceptance attracted the costs consequences in UCPR r 42.15A.
First, the Court was satisfied that the offer was a compromise. Keybridge was prepared to give up recovery of costs it had already incurred and further costs it would incur during the offer period. The Court considered this “something of substance” ([14]). The offer was not simply a demand that Mr Bolton abandon the appeal while leaving Keybridge's existing costs claim untouched.
Second, the Court considered whether four days was a reasonable time for acceptance under r 20.26(5)(b). That provision applies where the specific 28-day period for an offer made two months before trial does not govern. The Court described the relevant question as reasonableness in the circumstances ([10], [15]).
The surrounding timetable mattered. The appeal was expedited and set down for hearing seven days after the offer. Keybridge made the offer promptly after receiving Mr Bolton's amended appeal notice and submissions. Keybridge itself had only two business days, including a weekend, to file its written submissions in response. The compressed timetable meant the parties were incurring significant costs on a daily basis ([15]). The offer's closing date coincided with the date Keybridge had to file submissions.
The Court also considered Mr Bolton's position when the offer arrived. His preparation was essentially complete, and his legal advisers had sufficient information to make a reasoned assessment. The Court took account of the earlier description of the principal appeal grounds as “weak at best” in Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142, and considered that the amended notice did not change that assessment ([16]). These were relevant circumstances in the Court's reasonableness assessment, not a new determination of the merits in this costs judgment.
The authorities supplied contrasting guidance. In Leda v Weerden (No 3) [2006] NSWSC 220, a four-day offer close to trial was found to have a reasonable acceptance period. In Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85, a one-day period immediately before trial was described as borderline and was held not to be shown reasonable in the circumstances. The present Court's analysis was consistent with a contextual inquiry rather than a fixed minimum period for every late offer.
Once the Court found that the offer attracted the operation of r 42.15A, the costs question followed. The judgment explains that the rule creates a prima facie entitlement to indemnity costs from the offer date where its requirements are satisfied, unless the Court orders otherwise. It also states that the unsuccessful party bears the onus of persuading the Court not to make that order ([17]). Mr Bolton filed no submissions opposing indemnity costs, and the Court found no reason to order otherwise. It therefore made the costs order sought by Keybridge, with indemnity costs commencing the day after the offer date ([17]-[18]).
This decision applies the existing framework in UCPR rr 20.26 and 42.15A; it does not purport to change either rule. The judgment identifies r 20.26(5)(a) as prescribing at least 28 days where an offer is made two months before the date set down for trial, while r 20.26(5)(b) requires a reasonable closing date in other cases ([10]). By r 51.47, Division 4 of Part 20, which includes the compromise-offer regime, applies with necessary modifications to Court of Appeal proceedings ([14]).
On reasonableness, the judgment places its decision alongside earlier cases rather than stating a universal time limit. Leda rejected the proposition that a four-day period close to trial was necessarily unreasonable and observed that parties may be well placed to assess an offer when trial preparation is advanced ([12]). Kooee set out factors relevant in its own context: parties may understand the strengths and weaknesses of their positions, costs may accrue rapidly, and considering an offer may distract from final preparation ([13]). The present Court reached its conclusion after considering the particular timetable, preparation status and costs pressures in this appeal ([15]-[16]).
On costs, r 42.15A was described as providing the ordinary-costs-to-offer and indemnity-costs-after-offer framework, subject to the Court ordering otherwise. The Court cited Leach, Houghton, Chalik and Snowy Mountains Grammar School for the prima facie entitlement and burden proposition ([17]). It applied that framework to the facts before it, rather than announcing a different approach.
Accordingly, the “before and after” significance is limited but useful: the judgment supplies a Court of Appeal application of the rules to a four-day offer in a highly expedited appeal. It shows that a short period may be held reasonable when the surrounding procedural timetable is exceptionally compressed and the recipient is considered able to assess the offer. It does not establish that four days is generally sufficient, nor that a short period will necessarily support indemnity costs in other cases.
At [14], the Court said Keybridge's offer “constituted a ‘compromise’.” In plain English, the Court accepted that Keybridge was giving up a real benefit: its ability to seek recovery of costs already spent and further costs accruing during the offer period. The concession mattered to whether the offer qualified as a compromise.
At [15], the Court concluded that the four-day period “was reasonable in the circumstances.” The reasons were practical and case-specific: a hearing was imminent, the appeal was on an accelerated timetable, responsive submissions had to be prepared over a weekend, and litigation costs were accumulating quickly.
At [16], the Court said Mr Bolton was “in a position properly to assess the offer.” This did not mean the Court prescribed a standard amount of time for all recipients. It was an assessment of his circumstances on the record described in the judgment: his appeal preparation was essentially complete and his advisers had information sufficient for a reasoned view.
At [17], the Court stated that the unsuccessful party “bears the onus of persuading the Court that indemnity costs should not be ordered.” Put simply, once the rule's preconditions were satisfied, the party resisting indemnity costs had the burden of persuading the Court to depart from the prima facie result. In this case, Mr Bolton made no submissions on that issue.
Finally, the Court said the offer attracted r 42.15A and there was “no reason to ‘order otherwise’” ([17]). That explains the division in the order: ordinary costs through 17 July, the date Keybridge made the offer, and indemnity costs from 18 July ([18]).
The decision is most directly relevant to costs applications involving a formal offer of compromise in an appeal, where the offer is made shortly before a hearing and is open for a relatively short period. It is particularly pertinent where the proceeding is expedited, the offer follows shortly after the recipient's appeal materials are served, the parties face a compressed timetable for evidence or submissions, and substantial costs are accruing quickly.
The decision also illustrates why the substance of the proposal matters. The offer here provided for dismissal and no order as to costs between the parties, while Keybridge gave up its claim for costs already incurred and costs that would accrue while the offer remained open ([7], [14]). An offer with materially different concessions or consequences would require its own assessment.
For reasonableness, the court's focus was not only the number of days available. It considered the hearing date, the work each party had to complete, the recipient's state of preparation, and whether the recipient had sufficient information to evaluate the offer ([15]-[16]). Kooee also recognises that a short deadline can create a distraction from final preparation, while rapid accrual of costs may give parties an incentive to respond quickly ([13]). The present judgment's conclusion turned on its particular record and expedited schedule.
For the r 42.15A consequence, the relevant pattern is an unaccepted formal offer that meets the rule's conditions, followed by an outcome no less favourable to the offeror than the terms offered. The judgment records the rule's prima facie costs consequences and the burden on the party seeking a different order ([17]). It does not resolve every possible issue about whether an offer in other terms, or made on a different procedural timetable, would qualify.
The judgment is dated 12 August 2025. The supplied text contains no later judicial decisions applying, distinguishing, or reviewing this decision. Its references to Leda, Kooee, Leach, Houghton, Chalik and Snowy Mountains Grammar School are to earlier authorities cited or discussed in this judgment, not later treatment of this precedent.
The decision itself expressly situates its reasoning within those authorities. It discusses Leda and Kooee on whether an acceptance period is reasonable ([12]-[13]), and cites the other cases for the operation of r 42.15A and the burden associated with an application to order otherwise ([17]). Based on the judgment text alone, it is not possible to say how subsequent courts have treated Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 4).
The judgment does not set a general minimum number of days for a reasonable acceptance period under r 20.26(5)(b). Its conclusion concerns an unusually expedited appeal with a hearing seven days away, a short interval for responsive submissions, and preparation that the Court considered essentially complete. How those factors would apply to a less urgent appeal, a more complex offer, or a recipient needing further advice is not decided here.
The Court referred to the factors discussed in Kooee, including the time needed to consider and obtain instructions on an offer and the distraction from final preparation ([13]). The reasons in this case emphasise the recipient's readiness and the rapidly accruing costs. They do not set out how competing considerations would be balanced in a case where the recipient's actual circumstances were different or had been brought to the offeror's attention.
The judgment also does not explore in detail what makes a concession “something of substance” in all possible offer structures. It finds that giving up existing and future costs claims was sufficient on these facts ([14]). Different proposed terms may require closer analysis of what the offeror gives up and what the recipient obtains.
Finally, the Court says that satisfaction of r 42.15A creates a prima facie entitlement and that the unsuccessful party bears the onus of persuading the Court to order otherwise ([17]). It had no opposing submissions from Mr Bolton to assess. The decision therefore does not illustrate what evidence or circumstances might justify a different costs order, or how the Court might approach a contested application on a fuller record.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 4) [2025] NSWCA 184
Hearing dates: On the papers
Date of orders: 12 August 2025
Decision date: 12 August 2025
Before: Bell CJ; Payne JA; Stern JA
Decision: (1) Set aside order 2 made on 30 July 2025 and in lieu thereof order:
Mr Bolton pay the respondent’s costs of the appeal:
(a) incurred on or before 17 July 2025 assessed on the ordinary basis; and
(b) from 18 July 2025 assessed on an indemnity basis.
Catchwords: COSTS — special costs order — offer of compromise by respondent not accepted — whether offer open for such time as reasonable in circumstances — Uniform Civil Procedure Rules r 20.26
COSTS — costs of appeal — consequence of offer of compromise made prior to trial — indemnity costs — Uniform Civil Procedure Rules r 42.15A
Legislation Cited: Uniform Civil Procedure Rules 2005 rr 20.26, 42.15A, 51.47
Cases Cited: Chalik v Chalik [2025] NSWCA 136
Houghton v Potts (No 3) [2023] NSWSC 69
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No. 2) [2008] NSWCA 85
Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Leda v Weerden (No 3) [2006] NSWSC 220
Snowy Mountains Grammar School Ltd v Adventurer AWD Pty Ltd [2022] NSWSC 53
Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 3) [2025] NSWCA 168
Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142
Texts Cited: Nil
Category: Costs
Parties: Yowie Group Limited (Appellant)
Nicholas Bolton (Second Appellant)
Keybridge Capital Limited (Respondent)
Representation: Counsel:
L Judd (Second Appellant)
J S Emmett SC / D Krochmalik / D Monteith (Respondent)
Solicitors:
Bridges Lawyers (Second Appellant)
Mill Oakley (Respondent)
File Number(s): 2025/243020
Publication restriction: None
THE COURT: On 30 July 2025, the Court delivered its judgment in this matter: Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 3) [2025] NSWCA 168. In what follows familiarity with that decision is assumed.
At the time judgment was handed down, the successful respondent sought the fixing of a timetable to make submissions about a special costs order. The Court made the following orders:
Direct that the respondent file any submissions in respect of special costs order in light of the Court’s decision of no more than 3 pages, by 4pm on Friday 1 August 2025 together with any evidence.
Direct that Mr Bolton file any submissions of no more than 3 pages and evidence in reply, by 4pm next Wednesday 6 August 2025.
Direct that the respondent file any submissions in reply to Mr Bolton’s submissions, by 4pm Friday 8 August 2025. If the respondent does not intend to reply, the respondent is to notify the Court as soon as possible after Mr Bolton has filed his submissions.
On 1 August 2025, the respondent filed an affidavit of Nicole Mouyat affirmed on that date, together with written submissions.
Mr Bolton did not file any submissions or evidence in reply. On 7 August 2025, the respondent notified the Court (and Mr Bolton) by email that as Mr Bolton had not filed submissions or evidence there would be no submissions in reply. The respondent consented to the application being determined on the papers.
As we explained in our principal judgment, on 9 July 2025 Mr Bolton was joined by an order of Leeming JA as the second appellant to these proceedings which had been commenced by Yowie Group Limited (YGL). Following Mr Bolton’s joinder, YGL played no active part in the proceedings.
On the afternoon of 16 July 2025, Mr Bolton’s then solicitors served an amended notice of appeal and written submissions signed by Mr Green SC.
Ms Mouyat deposed that at 10.31am on 17 July 2025, the following letter was sent to Mr Bolton’s solicitors:
Bolton v Keybridge Capital Ltd - Supreme Court of NSW, Court of Appeal Proceeding No. 243020 of 2025
We act for Keybridge Capital Limited. We refer to your client’s amended notice of appeal served on 16 July 2025 and the hearing listed on 24 July 2025.
The purpose of this letter is to offer to resolve the proceedings to avoid further unnecessary costs being incurred.
No reasonable prospects of success
Your client’s amended notice of appeal, and submissions in chief, largely replicate the grounds of appeal and arguments that were raised unsuccessfully by Yowie before Leeming JA on the injunction application heard on 26 June 2025. Justice Leeming dismissed that application with costs and described the prospects of success on appeal as “weak at best”. We refer to paragraphs 31, 39 and 53 of his Honour's judgment, as well as the catchwords in the headnote: Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142.
Your client also requires leave to appeal as a non-party to the proceedings below. To the extent your client seeks to protect his reputation, the only ground that appears to be directed to your client's reputation is proposed ground 4. That ground challenges Black J’s finding that the directors of Yowie made the decision to postpone the Yowie s 249F meeting for an improper purpose. We note that your client did not give evidence at trial and does not seek to adduce any fresh evidence on appeal. Black J’s findings as to improper purpose were supported by a Jones v Dunkel inference that the evidence that could have been given by the directors of Yowie (other than Mr Ranger) who were not called at trial would not have assisted Yowie in displacing the inference that Yowie’s directors postponed the meeting for an improper purpose. Your client has not sought to challenge that inference on appeal and your client’s submissions do not identify any error in Black J’s reasoning that has reasonable prospects of success.
Offer of compromise
Our client makes the following offer to resolve the proceedings in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The offer relates to the whole of your clients' appeal.
The terms of the offer are that (Offer):
(a) the proceedings be dismissed; and
(b) there be no order as to costs as between Mr Bolton and Keybridge.
In accordance with rule 20.26(1), the proposed orders for the disposal of your client's appeal are orders to the effect set out in (a) and (b) of the Offer.
The offer is open for acceptance in writing until 10.00am on Monday 21 July 2025, at which time the offer will lapse. Our client considers that time period to be reasonable in the circumstances, having regard to the expedited nature of the proceedings and the final hearing scheduled for 24 July 2025. Our client will be required to incur substantial costs in preparing for the hearing, including briefing Senior Counsel and Junior Counsel.
Calderbank offer
The Offer set out above is also made in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333, Cutts v Head [1984] 1 ALL ER 597 and Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2) [2005] VSCA 298. In the event that the Offer is not accepted, and our client obtains an order no less favourable than the terms of the Offer set out in this letter, our client will rely on this letter in support of an application for indemnity costs.
Our client considers that the Offer set out above constitutes a genuine compromise of the proceedings given our client has already incurred considerable costs dealing with the multiple directions hearings concerning your client's desire to intervene in and prosecute the appeal and to prepare for the hearing. By making the Offer, our client is prepared to forego its right to seek to recover these costs against your client. If the proceeding continues, our client will incur further substantial costs in preparing for the appeal, which our client will also seek to recover from your client.
We await your response.
….
Order that the second appellant (Mr Bolton) pay the respondent’s costs of the appeal:
(a) incurred on or before 17 July 2025 assessed on the ordinary basis; and
(b) from 18 July 2025 assessed on an indemnity basis.
(5) The closing date for acceptance of an offer–
(a) in the case of an offer made two months before the date set down for commencement of the trial–is to be no less than 28 days after the date on which the offer is made, and
(b) in any other case–is to be such date as reasonable in the circumstances.
[6] An offer of compromise was made on 30 January 2006 by Mr Weerden. It was stated that the offer was open for acceptance until 4.00 pm on 3 February 2006, four days later. The offer was that there be a verdict for Mr Weerden and that he and Leda should bear their own costs save in respect of costs already the subject of an order.
[7] Rule 20.26 of the Uniform Civil Procedure Rules 2005 deals with such offers. Leda submitted that the offer did not comply in that r 20.26(7)(b) provides that if an offer is limited as to the time it is open for acceptance, it must be left open for such time as is reasonable in the circumstances in a case where an offer is made less than two months before the date set down for the commencement of the trial. It was said that a four day period in the week immediately prior to the commencement of the trial fails to comply with the requirement. It was said that a reasonable time within the contemplation of the rule ought to have regard to the two months mentioned in it.
[8] It was also submitted that since Leda made an offer on 11 January 2006 and it took Mr Weerden until 30 January 2006 to make his offer, that interval was an indication of what should be regarded as a reasonable time in the circumstances.
[9] I reject those submissions. In my view, the two month period does not give any indication of what is regarded as a reasonable time because in the Uniform Civil Procedure Rules 2005, r 42.15(2)(b)(ii), which deals with the cost consequence of a failure to accept a defendant’s offer, reference is made to an offer being made after the commencement of the trial. It provides that the defendant is entitled to indemnity costs from 11.00 am on the day following the offer if made after the first day of the trial.
[10] In my view, the parties will be in the best position to assess an offer when it is made shortly before the commencement of the trial. By that stage preparation for the trial will be well in hand and the legal advisers will, therefore, be armed with sufficient information to make a reasoned judgment of the offer.
[20] In considering whether the time allowed for acceptance is “reasonable in all the circumstances” once a trial commences, or indeed final preparation commences, three factors come into play. The first is that both parties may reasonably be expected to have a clear perception of the strengths and weaknesses of their positions, so that the reasonableness of a particular offer may be speedily assessed. Secondly, because significant costs will be accruing on a daily, even an hourly basis, there is a heightened incentive to respond within the time permitted. Thirdly, and counterbalancing the first factor, the need to address the terms of an offer, provide advice and obtain instructions will often be a significant distraction from final preparation.
[21] In relation to the first factor, it should be accepted that by the day before the hearing, in commercial litigation involving experienced counsel and solicitors, the legal representatives would have been able to give the client an immediate assessment of:
(a) the approximate costs incurred to date;
(b) the likely length of the trial;
(c) the approximate amount of costs assessed on an indemnity basis if the matter proceeded to trial, and
(d) the most likely outcome, which may involve a range as to quantum.
It should also be accepted that someone with authority to bind the client would have been available to give instructions based on legal advice as to the preferable response.
[22] In seeking to demonstrate that the offer had not been left open for a reasonable time in all the circumstances, Primus sought to put before the Court evidence of how the offer was made and the circumstances of its own legal representatives at the time. However, that material was not relevant for this purpose. The question of reasonableness must be judged objectively, in the circumstances known, or which should reasonably have been anticipated, by both parties. In setting the time during which the offer is to remain open, the offeror must necessarily rely upon the circumstances as known to it, or which should reasonably be anticipated by it. The actual circumstances of the recipient, unknown to the offeror, may be relevant to an application that the Court otherwise order in relation to costs of a valid unaccepted offer, but so might evidence as to whether the recipient took any steps to bring such matters to the notice of the offeror.
[23] In the present case, the time allowed was, on any view, a short period for the consideration of a global assessment of a reasonably complex dispute. It is Kooee which seeks to establish an entitlement to indemnity costs. To do that it must demonstrate that its offer was left open for a period which was reasonable in all the circumstances. Because the present case is truly borderline, it should be concluded that Kooee has failed to establish that its offer was left open for a reasonable time. Accordingly, the offer did not fall within UCPR r 20.26 and its non-acceptance did not engage the costs consequences in r 42.15.
Division 4 (Compromise) of Part 20 of the UCPR applies (with necessary modifications to the language) to offers of compromise made in proceedings in the Court of Appeal: UCPR r 51.47. At the time the offer was made, we are satisfied on the basis of My Mouyat’s affidavit evidence that the respondent had already incurred significant costs in the appeal, including in preparing for the hearing of the appeal initially listed on 10 July 2025. There had been a number of directions hearings at which Mr Bolton’s expressed desire to intervene in the appeal had been canvassed. The respondent had commenced to consider the amended notice of appeal and written submissions had been served on behalf of Mr Bolton. The respondent was agreeing to forego something of substance, including the costs already incurred and the additional costs that the respondent would incur for the duration of the offer. In the present case, the respondent’s offer constituted a “compromise”.
As to UCPR r 20.26(5), the offer was made within 28 days from the hearing of the appeal and was open for acceptance for a period of 4 days. The closing date of the offer was the date the respondent was required to file its written submissions. We have determined that the period was reasonable in the circumstances. First, the appeal was expedited and was set down for hearing 7 days later. Secondly, the offer was made promptly after Mr Bolton served his amended notice of appeal and submissions on 16 July 2025. Thirdly, the respondent was required to file submissions in response within 2 business days (and over a weekend) by 21 July 2025. The compressed timetable necessary to prepare the matter for urgent hearing meant that the parties were accruing significant costs on a daily basis.
The relevant circumstances also include the fact that in Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142, Leeming JA had described the principal grounds of appeal advanced as “weak at best”. Mr Bolton’s amended notice of appeal did not in our view affect that assessment. This was a case where at the time the respondent’s offer was made, Mr Bolton was in a position properly to assess the offer. At that time, his preparation for the appeal was essentially complete and his legal advisers were armed with sufficient information to make a reasoned judgment about the respondent’s offer. The period the offer was open for acceptance was reasonable in the circumstances.
UCPR r 42.15A provides that, where a defendant’s formal offer of compromise is unreasonably rejected by the plaintiff, and the defendant obtains judgment which is no less favourable than the terms of the offer, then, “unless the court orders otherwise”, the defendant is entitled to: (i) costs on the ordinary basis up to the time that the offer was made; and (ii) costs on an indemnity basis thereafter. Satisfaction of the elements in UCPR r 42.15A therefore creates a “prima facie entitlement to indemnity costs” from the date of the offer: Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [40] (); [2023] NSWSC 69 at [16]; [2025] NSWCA 136 at [136]. The unsuccessful party bears the onus of persuading the Court that indemnity costs should not be ordered: at [29]; [2022] NSWSC 53 at [4]. Mr Bolton did not provide the Court with any submissions opposing to the making of an indemnity costs order. The present offer attracts the operation of r 42.15A and there is no reason to “order otherwise”.
For the foregoing reasons the Court orders:
Set aside order 2 made on 30 July 2025 and in lieu thereof order:
Mr Bolton pay the respondent’s costs of the appeal:
(a) incurred on or before 17 July 2025 assessed on the ordinary basis; and (b) from 18 July 2025 assessed on an indemnity basis.
**********
Yowie Group Ltd and Bolton
Keybridge Capital Ltd
Order 2 made on 30 July 2025 was set aside and replaced with an order that Mr Bolton pay Keybridge’s appeal costs incurred on or before 17 July 2025 on the ordinary basis, and costs from 18 July 2025 on an indemnity basis.